Douglas (a pseudonym) v The Office of the Director of Public Prosecutions (Qld) [2021] QChC 15

CHILDRENS COURT OF QUEENSLAND CITATION: Douglas (a pseudonym) v The Office of the Director of Public Prosecutions (Qld) [2021] QChC 15 PARTIES: DOUGLAS (a pseudonym) (applicant) v THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS (respondent) FILE NO: 139/2021 DIVISION: Childrens Court PROCEEDING: Application for a Sentence Review ORIGINATING COURT: Childrens Court at Brisbane DELIVERED ON: 19 July 2021 DELIVERED AT: Childrens Court at Brisbane HEARING DATE: 7 June 2021 JUDGE: Richards P ORDER: 1. The application is granted. 2. The sentence is set aside and in lieu thereof the child is ordered to undergo 12 months’ probation and 28 hours community service on the usual conditions. 3. No convictions are recorded. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – where the child was sentenced to six months’ detention to be served by way of a conditional release order, 12 months’ probation and 56 hours of unpaid community service for a variety of offences – where the child was 16 years old at the time of offending – where the child had a significant criminal history – where the offending was not particularly serious – where the child had spent some time in custody – where the child had suffered significant trauma – where the Crown concedes the sentence was excessive – whether the sentence imposed was excessive in the circumstances LEGISLATION: Penalties and Sentences Act 1992 (Qld) s 9 Youth Justice Act (Qld) s 149, s 150 CASES: R v MDD [2019] QCA 197 COUNSEL: Ms C Anderson-James for the applicant -- 1 of 7 -- 2 Mr D Evans for the respondent L Norton for Youth Justice SOLICITORS: Legal Aid Queensland for the applicant The Office of the Director of Public Prosecutions for the respondent Introduction [1] On 15 March 2021 the applicant child was sentenced in respect of charges of enter a dwelling and commit an indictable offence, unlawful use of a motor vehicle, stealing, possessing dangerous drugs, possessing tainted property, driving without a licence, wilful damage of police property, failure to appear in accordance with an undertaking, dangerous operation of a vehicle, evasion offence, wearing motorbike helmets (2), drive uninsured vehicle (2), vehicle used on road must be registered (2), vehicles not fitted with equipment required by vehicle standards (2), driving of motor vehicle without a driver’s licence, never held licence (2) and possession of a knife in a public place. He was also resentenced on 13 offences having breached that original sentence of 80 hours community service. [2] The court dealt with eight of the minor vehicle related charges by way of reprimand and there is no review sought of that order. Otherwise the child was sentenced to six months’ detention to be served by way of a conditional release order, 12 months’ probation and 56 hours of unpaid community service. [3] This matter was first before the Dalby Children’s Court on 25 January 2021. At that stage he pleaded guilty to eight offences, the community service breach was found, the order discharged and a pre-sentence report ordered. He failed to appear at his next appearance and then on 10 March he appeared in relation to a further 12 charges which involved driving an uninsured and unregistered motorbike. A further pre-sentence report was ordered although it appears the child was not in fact arraigned on those charges until the day of his sentence. Circumstances of the offences [4] The facts of the charges are as follows: -- 2 of 7 -- 2 • Possession of knife in a public place on 5 December 2020. The child was riding a bicycle and was found in possession of a 20 centimetre blade. He had picked it up off the streets hours earlier. • Burglary and commit indictable offence and unlawful use of a motor vehicle, stealing and driving without a licence, possession of dangerous drugs and possession of tainted property on 31 December 2020. The child entered a property at 5pm and took a handbag containing vehicle keys. He then used the keys to enter a BMW and drove away. He filled the car with fuel at a Caltex Service Station and drove off without paying for it. The police conducted checks and found he did not have a current driver’s licence. When the vehicle was located on the Warrego Highway the police found him a short distance away and he had thrown the keys into a nearby drain. He was searched and found in possession of 0.7 grams of cannabis, six watches and a pearl ring. • Wilful damage of police property on 4 January 2021. He broke a plastic cup by throwing it on the floor of a police holding cell. • Evasion, wearing a motorbike helmets, drive uninsured vehicle, vehicles on roads must be registered, vehicles not fitted with equipment required by vehicle standards. On 13 February 2021 at 10.30 pm police were conducting patrols in Dalby when they observed the child on an orange off-road motorbike. The bike had no working lights. He was not wearing a helmet. The police attempted to intercept him and he evaded them. • Dangerous operation of a motor vehicle, wearing motorbike helmets, drive uninsured vehicle, vehicles used on roads must be registered, vehicles not fitted with equipment required by vehicle standards, unlicensed driving. On 14 February 2021 at 1.00 am police were conducting patrols in response to complaints. They saw the child on a motorbike driving at high speeds towards their patrol vehicle before mounting the curb and passing behind them. He took a right-hand turn at speed before continuing through a roundabout. He was not wearing a helmet and it was the same motorbike which had no tail lights, indicators or speedometer. It was unregistered and uninsured and he was unlicensed. -- 3 of 7 -- 3 [5] In relation to the community service breach, those facts were not put before the court when the child was resentenced. The child should not have been resentenced without the Magistrate having some understanding of the facts of the offending. This is clearly a sentencing error. [6] The circumstances of the offending that resulted in the sentence of community service were consistent with an immature minor who is clearly unable to control himself when he is under stress. The offences involved the child damaging family’s possessions, threatening his mother with a pair of scissors, being found with a plastic water pipe, putting a piece of paper over a police camera and throwing a plastic cup at a cell door, ripping his watch house shirt, throwing a mug of orange juice around his watch house cell, stealing a phone charger and headphones. Discussion [7] The child, who was 16 at the time of the offending, did have a significant criminal history. He had previous offences dating back to 23 December 2016, when he was 12 years old. He had previously had probation and community service imposed as well as a conditional release order. [8] A pre-sentence report was prepared which indicated that the child had spent 25 days remanded in custody in relation to the original community service order. [9] The report indicates that prior to his birth and whilst his mother was carrying him, she was subject to extreme domestic violence. The parents separated when he was one. He has had little to do with his father who has been subject to extended periods of incarceration but there have been reports of domestic violence perpetrated by him when he has been out of custody and threats made to take the child out of her care. [10] In 2011 the child’s step-father and two half-siblings passed away in a motor vehicle accident which resulted in the mother being unable to care for herself or the applicant. She fell into heavy depression and the child was often left uncared for and unsupervised. He would arrive at school late with no food or not attend and he would be found walking the streets of Dalby by police. Police would take him home and be advised that the mother was unable to look after him because she was heavily under the influence of alcohol. -- 4 of 7 -- 4 [11] In February 2014 the Department of Child Safety became involved in his care but by this stage he had very complex behavioural and mental health issues. He is no longer in the Department’s care but he has a turbulent and unstable relationship with his mother and his mother has been in a series of domestically violent relationships. He was residing with his grandmother but that fell apart when he was unable to follow rules and boundaries set by her. He had been diagnosed with ADHD, Oppositional Defiance Disorder and Post Traumatic Stress Disorder. At the time of the offending he was under the influence of cannabis and had started chroming. [12] There were a number of errors identified by the applicant in this sentencing process. Firstly, the learned Magistrate, in re-sentencing the child for the breach of community service did not obtain any information about the facts of the original sentences. The facts of the offending speak of a child who was dealing with unresolved trauma and unable to control his actions. The child had spent 25 days in custody; that in itself, is a significant punishment for the offending. Further, the child had completed most of the order at the time of the breach hearing. The Magistrate’s actions in doubling the amount of unserved community service amounted to no more than a punishment for the breach rather than a resentence for the original offending. This was not an appropriate exercise of the judicial sentencing discretion. [13] Secondly, the Magistrate incorrectly applied the sentencing principles that are applicable to children in this State. She stated:1 “Remember, everyone seems to forget that the Youth Justice Act is also designed to have a punitive effect and take into account section 9 of the Penalties and Sentences Act, but to do so in a way that rehabilitates. So there has to be still some punitive aspect to sentencing, otherwise we’re in the situation where we often are, where young people seem to think that they can continue to commit offences because there’s not going to be any great consequences.” [14] This was an incorrect statement of principle. Section 9 of the Penalties and Sentences Act does not apply to the sentencing of children. Section 149 of the Youth Justice Act provides: 1 T1–13 ll 28–34. -- 5 of 7 -- 5 “(1) A court that sentences a child to an offence must sentence the child under this part. (2) Sub-section (1) applies despite any other Act or law.” [15] Section 150 of the Act provides the relevant sentencing principles. Sub-section 1(a) provides in sentencing a child for an offence, the court must have regard to “subject to this Act, the general principles applying to the sentencing of all persons” and this must be considered together with the Youth Justice principles and the special considerations stated in s 150(2).2 [16] It was submitted on his behalf that he found detention stressful and he was generally scared of the police. It was submitted that there had been an episode in the watchhouse where he experienced a mental health episode, the ambulance was called and he was given a needle to calm him. He has a fear of that happening again in custody. This submission was supported by the facts of one of the charges for which he received community service, which related to him tearing up a shirt in an attempt to hang himself whilst in the watchhouse. [17] In sentencing the applicant the Magistrate placed great weight on the applicant’s history which was significant. However, as noted in The Queen v MDD at [57]3: “It by no means follows that the appropriate order is one of detention simply because a child has been subject to non-custodial orders previously and has reoffended.” [18] The offending in this case was not particularly serious. The child was still very young, and he had spent some time in custody. He has suffered significant trauma in his young life. The Crown concedes that the order was excessive in the circumstances and submits that an order of probation and community service for the same amount of hours as was outstanding be imposed. Given the nature of the offending, detention, a sentence of last resort, was not appropriate. 2 Youth Justice Act 1992 (Qld) ss 150(1)(a)-(c) and s 150(2). 3 R v MDD [2019] QCA 197, [57]. -- 6 of 7 -- 6 Order [19] The application is granted, the sentence is set aside and in lieu thereof the child is ordered to undergo 12 months’ probation and 28 hours community service on the usual conditions. No convictions are recorded. -- 7 of 7 --